By Summary
An heir living abroad remains the owner of their share of the inherited property, even if a sibling lives in it alone. Under the case law of Brazil's Superior Court of Justice, whoever occupies the property exclusively must pay proportional rent to the other heirs from the date of notice (REsp 570.723/RJ). Without agreement, any heir can ask the court to sell the property and receive their share in cash. Rocha Advogados, based in Goiânia, handles these cases remotely.
Is the sibling who lives there the owner?
No. The inheritance passes to all heirs at the moment of death (Civil Code, art. 1.784) and, until the partition, the property belongs to all of them jointly, under co-ownership rules (art. 1.791). The sibling who lives in the house is one of the owners, in proportion to their share.
From when can I charge rent?
From the notice that the other heirs do not agree with free use. Before that, courts usually treat it as a loan tolerated within the family. Each month without notice is a month of rent that is unlikely to be recovered.
Example: for a property with a market rent of R$ 3,000 a month and three children inheriting equal shares, the sibling living there owes about R$ 1,000 a month to each of the other two, counted from the notice.
Could I lose my share?
Yes. The STJ has accepted that an heir who lives alone in the property, with no objection from the others, can acquire full ownership by adverse possession after 15 years (REsp 1.631.859/SP). For someone who has lived abroad for many years and never objected, sending a notice is the way to stop that risk.
What if the occupant is the surviving spouse?
Then the rule is different. The surviving spouse has a right of residence in the property that was the family home (Civil Code, art. 1.831), and in that case the children cannot charge rent or remove the spouse.
What documents do I need?
- Death certificate of the deceased.
- Updated property registration.
- A document showing your relationship to the deceased.
- Any message in which the relative admits living there or refuses an agreement.
- An estimate of the local market rent, if available.
Frequently asked questions
How do I send the notice from abroad?
The notice is sent by the lawyer in Brazil, through a notary or by letter with proof of receipt, on behalf of the heir abroad. It sets the date from which rent can be charged.
Can I force the sale of the property?
Yes. Without agreement, any heir can ask the court to sell the jointly owned property and divide the proceeds (Civil Code, art. 1.322), and the other heirs have a right of first refusal on the share being sold.
Who pays the property tax (IPTU) on the occupied property?
As a rule, whoever uses the property exclusively bears the costs of use. The STJ has rulings to that effect, and the amount can be offset when the heirs settle accounts.
Do I need to do the probate first?
Not to send the notice. Probate is needed to sell the property properly, and can be done at the same time.
Can I sell only my share of the inherited property?
Yes, with care. Before the division, an heir assigns inheritance rights by public deed (article 1,793 of the Civil Code), and the other heirs have a right of first refusal at the same price (article 1,794). After the division, selling a share of a co-owned property also respects the co-owners' right of first refusal (article 504).
This content is for information only and does not replace advice on your specific case. No outcome is guaranteed, in line with Brazilian Bar Provision 205/2021.
Rocha Advogados, a law firm in Goiânia, Brazil, serving Brazilians living abroad. Av. D, 419, 4th floor, Setor Marista. Lawyers in charge: Rafael Bispo da Rocha, OAB/GO 33.675, and Ivenise Uchôa de Almeida Rocha, OAB/GO 59.087. Online service for Brazilians in any country and in-person service in Goiânia.